FEDERAL COURT OF AUSTRALIA BYI18 v Minister for Home Affairs [2019] FCA 803 Appeal from: BYI18 & Ors v Minister for Home Affairs & Anor [2018] FCCA 2222 File number: NSD 1557 of 2018 Judge: BESANKO J Date of judgment: 31 May 2019 Catchwords: MIGRATION — where a delegate of the Minister for Immigration and Border Protection refused to grant the appellants Safe Haven Visas — where the Immigration Assessment Authority affirmed the delegate's decision — where the Federal Circuit Court of Australia dismissed the appellants' application for judicial review of the Authority's decision MIGRATION — whether the primary judge erred in failing to consider, or failing to conclude, that the Authority committed jurisdictional error in its interpretation or application of s 473DD of the Migration Act 1958 (Cth) — whether the Authority was entitled to conclude that it could be satisfied that new information could not have been provided to the delegate before the delegate's decision — consideration of CMY17 v Minister for Immigration and Border Protection [2018] FCA 1333 and BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221 Legislation: Migration Act 1958 (Cth) ss 65, 473DC, 473DD Cases cited: AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; (2018) 162 ALD 442 BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221 CMY17 v Minister for Immigration and Border Protection [2018] FCA 1333 Minister for Immigration and Border Protection v CQW 17 [2018] FCAFC 110; (2018) 162 ALD 427 Date of hearing: 20 February 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 34 Counsel for the Appellants: Mr G Foster Solicitor for the Appellants: Sentil Solicitor & Barrister Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: MinterEllison Counsel for the Second Respondent: The Second Respondent entering a Submitting Notice, save as to costs ORDERS NSD 1557 of 2018 BETWEEN: BYI18 First Appellant BYJ18 Second Appellant BYK18 (and another named in the Schedule) Third Appellant AND: MINISTER FOR HOME AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent JUDGE: BESANKO J DATE OF ORDER: 31 May 2019 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellants pay the first respondent's costs to be assessed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BESANKO J: 1 This is an appeal from orders made by the Federal Circuit Court of Australia on 14 August 2018. On that day, the Federal Circuit Court made an order dismissing the appellants' application for judicial review of a decision made by the Immigration Assessment Authority (the Authority) on 21 March 2018. 2 There are four appellants. The first and second appellants are husband and wife, and the third and fourth appellants are their children. The first, second and third appellants were born in Sri Lanka, and the fourth appellant was born in Australia. The first, second and third appellants arrived in Australia as irregular maritime arrivals on 27 May 2013. The first appellant identified himself as from Colombo in Sri Lanka, a Tamil and his religion as Hindu. 3 On 24 May 2016, the appellants made applications for Safe Haven Enterprise visas. The first and second appellants made applications in their own right and the third and fourth appellants made applications as members of a family unit. The first and second appellants were interviewed by a delegate of the Minister for Immigration and Border Protection on 6 February 2017, and their representative made a post-hearing submission on their behalf by letter dated 21 February 2017. 4 On or about 26 June 2017, the delegate decided that the applications should be refused and the appellants were advised of that fact by letter. On 30 June 2017, the appellants were advised that their applications had been referred to the Authority. On 21 March 2018, the Authority affirmed the decision of the delegate. 5 The appellants made an application for judicial review on 18 April 2018. The application contained one ground and that ground related to the Authority's construction and application of s 473DD of the Migration Act 1958 (Cth) (the Act). That section deals with the receipt of new information by the Authority. The ground was as follows: 1. The IAA adopted an unduly narrow construction of s473DD by confining its determination of the new information to whether or not the applicant provided an explanation in accordance with the Practice Direction 1. At [6] – [11] the IAA reasoned that a failure to provide an explanation was determinative of the matters set out in s 473DD. In doing so, it constructively failed to exercise its jurisdiction under s 473DD. Particulars a. On 4 August 2017 the IAA received a submission for the applicants' representative, a statutory declaration for the applicant husband, photographs, copies of R's driver licence and his Sri Lankan National ID card and an article dated 18 July 2017 from the Office of the High Commission for Human Rights (OHCHR); b. At [5] the IAA found that the submission was legal argument refuting the delegate's finding and was not new information but the other four documents were not before the delegate; c. The IAA was not satisfied that the requirements of s473DD(b)(i) or (ii) were met and also found at [7] that the applicant had admitted to posting false information about himself on Facebook; d. The IAA focused on the availability of the new information before the delegate made his decision, instead of whether the information was personal credible information and in doing so the IAA fell into jurisdictional error. 6 The appellants appeared in person before the primary judge. The primary judge summarised the basis of the appellants' claims and the delegate's reasons for rejecting them as follows: (at [3]–[4]): The first applicant, the husband, claimed to fear harm because the Sri Lankan authorities believed he was involved in the Liberation Tigers of Tamil Eelam ("LTTE"). The first applicant alleges his wife's sister's husband's brother R was abducted in April 2012 and told his abductors he was involved with the LTTE. Both the first and second applicants feared being kidnapped on return to Sri Lanka because of this alleged LTTE connection and because of their Tamil ethnicity. On 26 June 2017, the delegate found the applicants failed to meet the criteria for the grant of Safe Haven Enterprise visas. The delegate made adverse credibility findings and did not accept that the alleged person, R, implicated the first applicant as being a member or a supporter of the LTTE. The delegate did not accept the Sri Lankan authorities or any other group had any interest in the first applicant or his brother, or that the Sri Lankan authorities or any other group are looking for the first applicant or his brother, or that the first applicant and his family went into hiding after the brother's arrest, or that the alleged arrest had any impact on the first applicant. (BYI18 & Ors v Minister for Home Affairs & Anor [2018] FCCA 222.) 7 Having regard to the matters raised on the appeal, it is not necessary to summarise the Authority's reasons (or those of the primary judge) for rejecting the substance of the appellants' claims. 8 As I have said, the Federal Circuit Court dismissed the application for judicial review on 14 August 2018. 9 The Notice of Appeal contains two grounds. The second ground is not pressed. The first ground is in the following terms: 1. The FCC Judge when dismissing proceedings failed to consider all of the grounds raised. 10 Despite the generality of that ground, the appellants' argument is that the primary judge erred in failing to consider or, in the alternative, failing to conclude, that the Authority committed a jurisdictional error in its interpretation or application of s 473DD of the Act. 11 The background to this claim is as follows. 12 On 4 August 2017, the appellants' solicitor and registered migration agent from the Refugee Advice and Casework Service (Aust) Inc (RACS) sent a submission and a number of documents to the Authority. In its reasons, the Authority identified in this material the following items of new information: (1) Submissions, including legal argument directed to the appellants' claims and advancing reasons the delegate's decision was wrong; (2) Country information, including an article from the Guardian and an Office of the High Commission for Human Rights article; (3) Information in the submission about Facebook posts by the first appellant; (4) Information in the submission and an attached statutory declaration by the first appellant about the first appellant's brother; (5) Three photographs, one of the second appellant and her sister and mother, and two of the wedding of the second appellant's sister, S, to A, the brother of R who was allegedly abducted. R features in the second and third photographs standing next to A and S. Neither the first nor second appellants appear in the second and third photographs; and (6) A scanned copy of R's Drivers Licence and National ID Card. 13 In the submission from RACS dated 4 August 2017, the items in the above list which are identified as new information are paragraphs (2) and (4). As will become clear, of these two paragraphs, only paragraph (4) is relevant on the appeal. As to paragraph (4), the appellants do not in the submission make any particular submission directed to the matters in s 473DD. It seems that by implication they relied on the date the first appellant says he was given the information by his mother (see below). 14 The appellants do not challenge the Authority's approach under s 473DD to all of the items of information set out above (in [12]). Their challenge is restricted to the items identified in paragraphs (3), (4) and (5) above. 15 Section 473DC addresses the Authority getting new information in relation to a fast track decision. New information is defined as documents or information that were not before the Minister (or the Minister's delegate) when the Minister (or the Minister's delegate) made the decision under s 65 and that the Authority considers may be relevant. 16 Section 473DD is in the following terms: 473DD Considering new information in exceptional circumstances For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless: (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information: (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims. 17 There are two situations then in which the Authority may consider new information. First, it may do so when it is satisfied that there are exceptional circumstances which justify consideration of the new information and the Authority is satisfied that the new information was not, and could not have been, provided to the Minister before the Minister made the decision under s 65. Secondly, it may do so when it is satisfied that there are exceptional circumstances which justify consideration of the new information and the Authority is satisfied that the new information is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims. I should add that it is possible that in a particular case both paragraphs (b)(i) and (b)(ii) may be satisfied. 18 Section 473DD was considered by the Full Court of this Court (Minister for Immigration and Border Protection v CQW 17 [2018] FCAFC 110; (2018) 162 ALD 427 and AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; (2018) 162 ALD 442). 19 In CMY17 v Minister for Immigration and Border Protection [2018] FCA 1333, Thawley J summarised the principles which emerge from these two Full Court authorities. With respect, I consider his Honour's summary of the principles to be accurate. It is as follows (at [26]): (1) The requirements of s 473DD(a) and (b) are cumulative. The Authority is prohibited from considering new information unless it is satisfied of the matters in both paragraph (a) and subparagraph (b)(i) or (ii) or both: CQW17 at [36]; AQU17 at [13]. (2) The words "exceptional circumstances" are not defined and are to be given their ordinary meaning; circumstances are "exceptional" if the circumstances may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon: AQU17 at [13]. (3) What will amount to "exceptional circumstances" is inherently incapable of exhaustive statement and must depend on the particular circumstances of the visa applicant's case: Plaintiff M174 at [30]; AQU17 at [14]. There may be a combination of factors which, when viewed together, constitute "exceptional circumstances", or one factor itself may be sufficient for "exceptional circumstances" to exist: AQU17 at [13]. (4) The Authority's satisfaction that there are exceptional circumstances (subparagraph (a)) to justify considering the new information extend beyond, but might be contributed to by, the Authority's satisfaction that the new information: (a) could not have been provided to the Minister at the time of the s 65 decision (subparagraph (b)(i)); or (b) is credible personal information which had not previously been known (subparagraph (b)(ii)): CQW17 at [48]-[49]. (5) Whilst it always depends on the particular facts, a failure by the Authority to turn its mind to the matters in subparagraphs (b)(i) and (b)(ii) in determining whether it is satisfied that there are "exceptional circumstances" for the purposes of paragraph (a) may constitute jurisdictional error: CQW17 at [51]-[53]. However, it is a misconception that the matters in (b)(i) and (ii) must, in all cases, be considered by the Authority in deciding whether "exceptional circumstances" exist under (a): AQU17 at [14]. Nor is there a requirement to make an express finding under (b)(i) or (ii) for the purpose of considering whether "exceptional circumstances" exist under (a): AQU17 at [16]. (6) It is possible that the Authority's consideration of the existence of exceptional circumstances under paragraph (a) is relevant to its satisfaction as to the matters in paragraph (b), however it would be necessary to identify: (a) the circumstances contended to be exceptional; and (b) how consideration of such asserted exceptional circumstances might have informed the Authority's consideration of the matters in (b): CQW17 at [71]-[72]. 20 In BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221 (BVZ16), White J also considered the provisions of s 473DD. In the course of his reasons, his Honour said (at [9]): The requirements of subparas (a) and (b) are cumulative but may nevertheless overlap to some extent. The Authority's satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority's satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant's circumstances are not exceptional. (emphasis added.) 21 The first item of information with respect to which the appellants submit that the Authority erred consists of Facebook posts by the first appellant. The appellants' submission to the Authority dated 4 August 2017 states as follows (at [23]): … [BYI18] also states he regularly uses his Facebook account to disseminate material related to the treatment of Tamils in Sri Lanka, which includes making strong comments and criticisms of the Sri Lankan Government. This further heightens [BYI18's] risk profile as someone imputed with a political opinion supportive of the LTTE. This would be compounded by his membership of the particular social group of failed asylum seekers if returned to Sri Lanka. As to this item of information, the Authority said (at [7]): The submission also contains new information in the form of further detail of matters discussed at the PV interview, and information of claimed recent events concerning the applicant husband's brother 'V' (from the applicant husband) which is also contained within the applicant husband's statutory declaration. I consider this to be new information. This information includes a new claim that the applicant husband regularly uses his Facebook account to disseminate material related to the treatment of Tamils in Sri Lanka, which includes making strong comments and criticisms of the Sri Lankan government. The submission states this will further heighten the applicant husband's risk profile as someone imputed with a political opinion supportive of the LTTE and would be compounded by his membership of the particular social group of failed asylum seekers if returned to Australia. No examples of these posts have been provided and no dates have been provided as to when these claimed posts were made. I note from his PV interview the applicant husband admitted to posting false information about himself including the fact that he had studied at Colombo University when he hadn't. The applicant has not satisfied me that the requirements of s.473DD(b)(i) or s.473DD(b)(ii) are met in relation to this new information. I am therefore unable to consider it. 22 The appellants submit that the Authority did not properly consider paragraph (b)(i) of s 473DD. The Authority did not consider "that missing link" of paragraph (b)(i), that is, whether or not the new information could have been provided to the delegate. 23 The first respondent submits as to all three items of information that I should conclude that the Authority decided that the appellants had failed to satisfy it that the information could not have been provided to the delegate before the delegate's decision. He pointed to the following matters. The Authority sent a copy of its Practice Direction to the appellants on or about 30 June 2017 and that Direction included the following statement: 24. If you want to give us new information, you must also provide an explanation in writing as to why: • the information could not have been given to the Department before the decision was made, or • the information is credible personal information which was not previously known and may have affected consideration of your claims, had it been known. 24 In two emails from the Authority to the RACS dated 10 July 2017 and 20 July 2017 respectively, the Authority advised the appellants as follows: I refer to your correspondence of 8 July 2017 requesting additional time to provide submissions and new information. Under the Practice Direction for Applicants, Representatives and Authorised Recipients any new information must be given to the IAA within 21 days of the date on which the case was referred to us by the Department. The Direction also states that any submission on why the delegate's decision may be wrong should be given by that date. It is noted that you were the representative for the applicants before the Department of Immigration and Border Protection. As the case was referred on 29 June 2017, this 21 day period ends on 20 July 2017. However, no decision on this review will be made before 31 July 2017. Any submission should be received by that date and should be no more than 5 pages in length. Any new information that is received prior to a decision being made may be considered subject to it meeting the requirements of s.473DD of the Migration Act 1958. Please note that under the Practice Directions, new information must be accompanied by an explanation as to why the new information could not have been given to the Department before the decision under review was made, or why it is credible personal information which was not previously known and may have affected the consideration of the claims. The IAA can only consider new information in limited circumstances. Yours sincerely Immigration Assessment Authority I refer to your correspondence of 19 July 2017 requesting additional time to provide submissions and new information. Under the Practice Direction for Applicants, Representatives and Authorised Recipients any new information must be given to the IAA within 21 days of the date on which the case was referred to us by the Department, which was 26 June 2017. The Direction also states that any submission on why the delegate's decision may be wrong should be given by that date. However, no decision on this review will be made before 4 August 2017. Any submission should be received by that date and should be no more than 5 pages in length. Any new information that is received prior to a decision being made may be considered subject to it meeting the requirements of s.473DD of the Migration Act 1958. Please note that under the Practice Directions, new information must be accompanied by an explanation as to why the new information could not have been given to the Department before the decision under review was made, or why it is credible personal information which was not previously known and may have affected the consideration of the claims. The IAA can only consider new information in limited circumstances. Yours sincerely Immigration Assessment Authority 25 In addition to these matters, the first respondent pointed to the fact that the terms of paragraph (b) make it quite clear that the onus is on the applicant to satisfy it of the matters in paragraphs (b)(i) or (b)(ii). 26 With respect to the first item of information, the first respondent's submissions are correct. In order to meet paragraph (b)(i), the referred applicant must satisfy the Authority that the new information could not have been provided to the delegate. The Authority was aware of that requirement and was not so satisfied. There were clearly grounds for that conclusion as the Authority noted. No posts or dates of posts were provided by the appellants. The first appellant had made posts before his protection visa interview. It was open to the Authority to conclude that it could not be satisfied that the new information could not have been provided to the delegate. 27 The second item of information with respect to which the appellants submit that the Authority erred was information which concerned the first appellant's brother, V. The delegate found that the return of V to Sri Lanka was a matter which adversely affected the appellants' credibility. In the appellants' submission dated 4 August 2017, the appellants contended that new information was that V's life was threatened shortly after returning to Sri Lanka and that he had fled the country a second time to avoid harm. This was said to mean that it was open to the Authority to find "that the applicants would also be targeted and at real risk of harm if returned". In the accompanying statutory declaration of the first appellant, he provides the following information about V's second departure from Sri Lanka: 1. … 2. On or around 3 July 2017, after I was told that my Safe Haven Enterprise Visa application had been refused, I spoke to my mother by telephone to tell her what had happened. During this telephone call, my mother related the following information to me: a. My brother [V] had returned to Sri Lanka from Australia. When he arrived in Sri Lanka, he avoided [ ] because he feared being easily found by the Sri Lankan authorities. To avoid harm, he went into hiding with an uncle based near [ ]. b. About three months ago, some plain-clothed men came to our uncle asking after both my brother and me. Our uncle was beaten and harassed. The men verbally and physically abused him saying if you do not tell us where my brother and I were, they would kill him. My uncle denied knowing either of our whereabouts. The men told my uncle they knew [V] was staying there and that they would be back. c. Our uncle then phoned my brother and told him what happened and advised him for his own protection not to return to the house or [ ]. d. Out of fear, my brother decided his only option was to flee Sri Lanka. He got help from some fishing friends from [ ] area to board a boat to get to southern tip of India by boat. 3. I have not had any contact with my brother since he left Australia. My brother told our uncle his plans to leave and avoid harm. My uncle relayed that information to my mother who then relayed it to me. 4. Before my telephone call on or around 3 July 2017, my mother had not previously told me about [V]. I do not know if she knew about his circumstances earlier, or if she did not want to tell me about [V] because talking about him makes me very angry. I do not know if the mean have returned have returned [sic] to visit my uncle. I am not in contact with my uncle and I have not heard about this from my uncle. 5. Hearing this news about what happened to [V], my fears of being harmed in Sri Lanka are further heightened. I fear that if I am returned to Sri Lanka I will be tracked down like my brother. 28 The Authority considered that this information was new information. However, it did not consider that it met the requirements of s 473DD of the Act. The Authority said (at [9]): The claimed beating of the applicant's uncle and his brother's departure to Sri Lanka occurred almost three months prior to the delegate's decision. The delegate questioned the applicant in his interview about his current relationship with V and whether he was aware of V's departure from Australia. The applicant husband advised he no longer had contact with his brother. I note in his PV application the applicant husband stated he spoke to his mother on a daily basis. I do not consider it plausible that the applicant's mother would not have passed this information on regarding her other son V given the seriousness of the claimed events and the fact that the applicant husband has applied for protection for similar reasons. I also question the timing of the relay of this information from his mother to the applicant husband just over a week after the delegate's negative decision. Given the applicant husband's credibility was a key concern to the delegate and the continuous line of communication with his mother, the applicant husband has not satisfied me that this is credible personal information. The applicant has not satisfied me that the requirements of either s.473DD(b)(i) or s.473DD(b)(ii) are met in relation to this new information. I am also not satisfied there are any exceptional circumstances to justify considering this information. 29 The appellants' argument is that the Authority did not address paragraph (b)(i) and, in those circumstances, could not properly have reached a conclusion about the application of paragraph (a). As I understood the argument, it was that the Authority only considered paragraph (b)(ii) and it then moved to consider paragraph (a). Whilst it could refuse to consider new information by reference to paragraph (a) alone, it should not do so without making a finding in relation to whether the new information could not have been provided to the delegate (i.e., paragraph (b)(i)) because a finding favourable to the appellants on that matter would be relevant to a consideration of the matter in paragraph (a). On the other hand, I note that an unfavourable finding would obviate the need to consider the matter in paragraph (a) because one of the requirements in paragraph (b) must be satisfied. 30 The appellants called in aid of its submission the comments by White J in BVZ16 set out above (at [20]) and, in particular, the passage I have emphasised. They acknowledged the observations of Thawley J in his summary of the relevant principles at (5) (see [19] above). 31 I reject the appellants' argument. As the Authority noted, the claimed beating occurred three months before the delegate's decision and the first appellant claimed to speak to his mother on a daily basis. The Authority was entitled to conclude that it could not be satisfied that the information could not have been provided to the delegate before the delegate's decision. 32 The third item of information with respect to which the appellants submit that the Authority erred concerned the three family photographs. I have already described the persons who appear in these photographs. With respect to this information, the Authority said (at [10]); …The representative states that these photos have been provided as the delegate indicated no evidence of the applicant husband's relationship with R had been provided. The photos were all taken prior to the delegate's decision. The familial relations and the applicants' association with R formed the basis of their claims for protection and this was discussed in detail at their PV interview. The delegate also did not dispute the existence of their relationship with R; it was that she did not accept R had implicated the applicant husband as being a member or supporter of the LTTE or that R's disappearance had any impact on the applicants. I am not satisfied that the photographs may have affected consideration of the claims. The applicant has not satisfied me that the requirements of s.473DD(b)(i) or s.473DD(b)(ii) are met in relation to this new information. I am therefore unable to consider it. 33 The appellants submit that the Authority erred because it did not address whether the requirements in paragraph (b)(i) had been met. I reject this argument. The Authority found that the photographs had all been taken prior to the delegate's decision. The Authority was not satisfied, in those circumstances, that the photographs could not have been provided to the delegate. The onus was on the appellants and they failed to discharge it. 34 The appeal by the appellants must be dismissed with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 31 May 2019 SCHEDULE OF PARTIES NSD 1557 of 2018 Appellants Fourth Appellant: BYL18